( Being an appeal from the ruling of Hon. Barbara A. Akinyi, Resident Magistrate/Adjudicator, delivered on 9 th October 2024 in SCCCCOM No. 4400 of 2024 in the Small Claims Court at Milimani )
JUDGMENT.
Introduction
1. The Claimant/Respondent filed the claim seeking for a sum of Kshs. 805,700.00 being the outstanding arrears for the repairs undertaken by the Appellant for the Respondents various motor vehicle. The Respondent was served with the statement of claim but did not file a response to the claim on time.
2. The Respondent then applied and obtained judgment in default foe the sum of Kshs. 805,700.00 against the Appellant. The Appellant then applied for the setting aside of the default judgment and the reason was that the parties were negotiating.
3. From the proceedings of 9 th October 2024, several issues are evident. First, that the Appellant was duly served and was aware of the suit and had not filed a response to the claim. Secondly, there was no evidence that the parties were negotiating as claimed by the Appellant. The court having considered the said facts and the submissions of the respective Counsel declined to set aside the default judgment and dismissed the same. The Court relied on the case of Shah vs Mbogo (1967) EA 116 and Victoria Pumps Ltd vs KPK & 4 Others (2015 ). The court stated that the Appellant had been given the opportunity to be heard but did not utlilise the opportunity. Further, the Appellant had not provided sufficient reason as to why the court should exercise its discretion in favour of the Appellant. The Appellant has thus appealed against the ruling if the court.
4. Both parties filed their submissions in support and opposition to the appeal. The Appellants submissions are dated 27 th March 2025 and the Respondents submissions are dated 24 th April 2025.
5. The Appellant cited the determination in Tree Shade Motors Ltd vs DT Dobie & Another , which cited James Wanyoike & 2 Others vs CMC Motors Group Limited & 4 Others Civil Case No. 144 of 2014 [1995-1998] 1EA 324 , where it was held that:
“ Even if the service of summons is valid, the judgment will be set aside if the defence raises triable issues. Where a draft defence was tendered together with an application to set aside a default judgment, the court hearing the application was obliged to consider if it raised a reasonable defence to the plaintiff 's claim. Where the defendant showed a reasonable defence on the merits, the court could set the ex-parte judgment aside ”.
6. The Respondent in his submissions relied on the case of Shah vs Mbogo [1967] EA 166, which at page 123B as quoted in Marion Kaairi Mbui vs Elisha Mbogo Nthiga [2016] eKLR , the court stated as follows:
" this discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice ."
7. I have considered the rival submissions. First, the Appellant did not attach any draft response to the application seeking to set aside the default judgment. Secondly, the Appellant did not demonstrate reasons why they did not file any response to the claim on time. While there were allegations that they were negotiating, the same was not proved and the counsel stated as much on the 9 th October 2024. It was thus disturbing for the Appellant to inform the court the parties were negotiating when they were not.
8. The trial court thus correctly declined to allow the application as the Appellant did not meet the guidelines set out in the Shah vs Mbogo case. A party who had the opportunity to file a response but did not so do, cannot then seek the indulgence and discretion of the court in having the default judgment set aside.
9. In that regard, I find no merit in the appeal herein and proceed to dismiss the same with each party to bear its own costs.
10. The decretal sum deposited in court to be released to the Respondent forthwith .
Dated, signed and delivered virtually via Microsoft Teams on the 20 th August 2026.
HCCA NO. E1238 OF 2024 FINTEGIC CAPITAL LTD & ANO. VS RANGE ROVER CENTER RULING Pg. 3
JUDGMENT.
Introduction
1. The Claimant/Respondent filed the claim seeking for a sum of Kshs. 805,700.00 being the outstanding arrears for the repairs undertaken by the Appellant for the Respondents various motor vehicle. The Respondent was served with the statement of claim but did not file a response to the claim on time.
2. The Respondent then applied and obtained judgment in default foe the sum of Kshs. 805,700.00 against the Appellant. The Appellant then applied for the setting aside of the default judgment and the reason was that the parties were negotiating.
3. From the proceedings of 9 th October 2024, several issues are evident. First, that the Appellant was duly served and was aware of the suit and had not filed a response to the claim. Secondly, there was no evidence that the parties were negotiating as claimed by the Appellant. The court having considered the said facts and the submissions of the respective Counsel declined to set aside the default judgment and dismissed the same. The Court relied on the case of Shah vs Mbogo (1967) EA 116 and Victoria Pumps Ltd vs KPK & 4 Others (2015 ). The court stated that the Appellant had been given the opportunity to be heard but did not utlilise the opportunity. Further, the Appellant had not provided sufficient reason as to why the court should exercise its discretion in favour of the Appellant. The Appellant has thus appealed against the ruling if the court.
4. Both parties filed their submissions in support and opposition to the appeal. The Appellants submissions are dated 27 th March 2025 and the Respondents submissions are dated 24 th April 2025.
5. The Appellant cited the determination in Tree Shade Motors Ltd vs DT Dobie & Another , which cited James Wanyoike & 2 Others vs CMC Motors Group Limited & 4 Others Civil Case No. 144 of 2014 [1995-1998] 1EA 324 , where it was held that:
“ Even if the service of summons is valid, the judgment will be set aside if the defence raises triable issues. Where a draft defence was tendered together with an application to set aside a default judgment, the court hearing the application was obliged to consider if it raised a reasonable defence to the plaintiff 's claim. Where the defendant showed a reasonable defence on the merits, the court could set the ex-parte judgment aside ”.
6. The Respondent in his submissions relied on the case of Shah vs Mbogo [1967] EA 166, which at page 123B as quoted in Marion Kaairi Mbui vs Elisha Mbogo Nthiga [2016] eKLR , the court stated as follows:
" this discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice ."
7. I have considered the rival submissions. First, the Appellant did not attach any draft response to the application seeking to set aside the default judgment. Secondly, the Appellant did not demonstrate reasons why they did not file any response to the claim on time. While there were allegations that they were negotiating, the same was not proved and the counsel stated as much on the 9 th October 2024. It was thus disturbing for the Appellant to inform the court the parties were negotiating when they were not.
8. The trial court thus correctly declined to allow the application as the Appellant did not meet the guidelines set out in the Shah vs Mbogo case. A party who had the opportunity to file a response but did not so do, cannot then seek the indulgence and discretion of the court in having the default judgment set aside.
9. In that regard, I find no merit in the appeal herein and proceed to dismiss the same with each party to bear its own costs.
10. The decretal sum deposited in court to be released to the Respondent forthwith .
Dated, signed and delivered virtually via Microsoft Teams on the 20 th August 2026.
HCCA NO. E1238 OF 2024 FINTEGIC CAPITAL LTD & ANO. VS RANGE ROVER CENTER RULING Pg. 3